The fates of NBA star and alleged rapist Kobe Bryant and accused murderer Scott Peterson may be determined long before opening statements in their respective trials — and by how well their defense attorneys get to know the jurors who will decide their guilt or innocence.
Both cases — Bryant is accused of sexually assaulting a 19-year-old hotel employee in Colorado, Peterson of murdering his pregnant wife Laci in California — have received extensive pretrial publicity. From the local press in Eagle, Colo., and Modesto, Calif., to TV news networks seen nationwide, it seems that there are stories on the Bryant and Peterson cases at least twice a week.
Such cases present special problems when picking jurors, according to attorneys and jury consultants who specialize in the jury selection process known as voir dire.
"If I was involved in either case — as a prosecutor and as defense attorney — I would be very concerned about people 'auditioning' to be on the jury. I would be very leery of people who really want to serve on the case," said Donald E. Vinson, who is considered a pioneer in jury trial consultation and has worked on hundreds of cases. "In the O.J. Simpson case, there were many people who really wanted to be on the jury and tailored their answers to questions during voir dire to enhance their chances of being picked."
"There's a celebrity aspect of this where people may see an opportunity to get on television and be interviewed by Diane Sawyer on Good Morning America [after the trial] and get their 15 minutes of fame," Vinson continued. "It's really American theater at its finest."
Motivated by More Than Civic Duty?
Prospective jurors are randomly picked from a pool of local residents who have registered to vote or have a driver's license.
In state cases, prosecutors and defense attorneys can question individual jurors about the publications they read, their attitudes toward law enforcement, whether or not they could impose the death penalty, and whether they have been crime victims and how that shapes their attitudes toward defendants.
In federal cases, lawyers do not have an opportunity to individually question potential jurors but must rely on questionnaires. Or, judges in some federal case may question potential jurors themselves.
People generally dread the prospect of serving on a jury and losing precious work time. But widely publicized cases like Bryant's and Peterson's present a whole new set of problems — and a sudden and suspicious sense of civic duty in some people.
"There's a different set of rules," said defense lawyer Mickey Sherman, who has represented famous clients such as Kennedy cousin Michael Skakel, who was convicted in 2002 of killing his neighbor Martha Moxley. "What's scary is that you never really know what motivates certain jurors, … whether they want to make a statement, or whether they're coloring their answers to get on the jury."
In most criminal and civil cases, lawyers do not have to worry about pretrial publicity tainting a jury pool and shaping jurors' opinions about guilt, innocence or liability. But in cases that attract media attention, they worry about the effect the coverage will have on potential jurors.
"You don't know whether they're getting their information from the National Enquirer or someplace else," Sherman said.